Professor Jerome Cohen Cited in TIME Magazine

On the same day that Bo Xilai, China’s infamous disgraced politician, was formally charged with corruption, embezzlement and abuse of power, a clutch of Chinese activists was briefly detained at a birthday celebration in southern China. The two spasms of China’s legal system on July 25 might seem unrelated—one a choreographed development in China’s most stunning political scandals in decades and the other the routine harassment of human-rights campaigners by the Chinese security state. Yet the fates of Bo and a tribe of human-rights campaigners exemplify the way in which the ruling Communist Party’s fixation with maintaining social stability can dictate the course of the country’s judicial process.

Even as China’s economy has transformed and individual Chinese now enjoy far greater personal freedoms than before, progress has stalled in building a society ruled by law. This lack of legal advancement has been noted by ordinary Chinese, who are increasingly calling for rights that are guaranteed in their country’s own constitution. Meeting the demands of a more educated and empowered populace will be a significant task for Xi Jinping, China’s new leader, who replaced Hu Jintao last year. “China doesn’t have rule of law,” says civil-rights lawyer Pu Zhiqiang, who has represented a slew of dissidents and has often been detained for these efforts. “Looking at recent legal cases, you can see there is no big difference between the Xi and Hu administrations. The two biggest problems of the Chinese legal system are that there is no independent adjudication and no public justice.”

The state of China’s legal system was the subject of a lengthy report published on July 25 by Human Rights Watch, the New York-based NGO. In a 15-page essay, Jerome Cohen, a professor of law at New York University who is one of the foremost foreign experts on China’s legal system, describes criminal justice as “perhaps the most telling indication of a government’s adherence to human rights standards” and writes of China’s Communist Party:

“Although the Party prefers to resort to more subtle and conciliatory methods, it will probably continue to rely heavily on repression to cope with the country’s rising tide of social, economic and political discontent, endemic government and Party corruption and the common crimes that plague every society. The criminal process, broadly construed to include all the related government instruments for restricting physical freedom of the person, is the principal weapon of repression, and the abuses that have marked its use in China have themselves contributed to popular dissatisfaction.”

Cohen goes on to diagram the way in which the Chinese leadership’s obsession with social stability has led to the nation’s new Minister of Public Security Meng Jianzhu being chosen “as the new head of its central ‘Political-Legal Commission’ which controls all government legal institutions…rather than a leading judge, prosecutor, lawyer, law professor or administrative legal expert.” (Meng’s predecessor as Public Security Minister was also the head of the Political-Legal Commission and ranked even higher in the Party hierarchy.) Cohen also notes the limited progress made in the Chinese judicial system since the bad old days of show trials, pre-determined justice and arbitration detentions:

“The administration of criminal justice is still dominated by the police and the Party. The police still have enormous, virtually unfettered discretion in dealing with what they deem to be anti-social elements of all types. Some of the measures they impose are totally without legal foundation and often violate constitutional and legislative norms. Human rights activists, dissidents, protesters, petitioners, and their lawyers and families are frequent targets of illegal intimidation, threats, house arrest, kidnapping, beating, ‘black jails’ and temporary internal exile.”

Once the Party strongman in the western Chinese metropolis of Chongqing, Bo Xilai aspired to join the coterie of fewer than 10 men who rule China. According to Xinhua, the official Chinese news agency, he is being indicted for taking “advantage of his position as a civil servant to seek gains for others,” accepting “bribes in the form of large amounts of money and property,” embezzling “an extremely large amount of public funds” and abusing “his power of office, causing heavy losses to the interests of the nation and the people in an extremely serious way.” His victims claim Bo jailed and tortured those who stood in his way, creating a reign of terror in Chongqing, even as his Maoist-inspired rhetoric earned him some popular support.

Yet it is Bo who is now subject to the vagaries of the Chinese legal system that he is accused of having manipulated for so long. The former party chief’s downfall has proven equal parts spectacle and mystery. No one knows where he has been kept under detention. The charges against him were announced more than a year after his political career unraveled. For many months, Bo was locked up through a secretive—and unaccountable—judicial scheme that only applies to supposedly errant members of the Communist Party. A guilty verdict in his criminal trial, which will take place in the eastern city of Jinan, is practically a foregone conclusion. China-watchers assume the indictment means not the advent of normal due process but rather that various political factions have finally agreed on how to dispense with their fallen comrade.

Some of Bo’s critics also wonder why the former Chongqing party chief is not being charged in connection with even graver political infractions. (Bo’s wife Gu Kailai was handed a suspended death sentence last year for the murder of a British businessman.) “Bo was a person who didn’t have any political dignity,” says lawyer Pu. “He was full of lies when he was a government official. Yet his case is only being judged as an economic crime.”

As for the human-rights activists who were detained the same day Bo was charged, limits on their freedom are commonplace. Lawyer Teng Biao and more than a dozen campaigners from the southern city of Shenzhen were celebrating the 40th birthday of Hu Jia, a dissident who spent more than three years in jail for inciting subversion of state power. Hu’s five-year-old daughter was enjoying the festivities too. Then the police barged into the restaurant. The security forces focused their interrogation on Teng and Hu’s friendship with Xu Zhiyong, another human-rights lawyer who was picked up on July 16 and is still behind bars. (Xu’s lawyer was also temporarily detained earlier this month.) After an evening of harassment, the activists in Shenzhen were released. But this will not be the last time that human-rights advocates must contend with the capriciousness of the Chinese legal system.